How Can I Keep My Children from My Unfit Ex?

Proving that someone is an unfit parent is a challenging yet necessary legal battle when a child’s well-being is at stake.

Children are more likely to have higher self-esteem and fewer behavioral problems when they have a healthy, meaningful relationship with both parents. New York law prefers parents share custody that is as equal as possible. Yet there are situations where a parent’s conduct places the child in physical or emotional harm.

Asking the court to find a parent unfit for custody can occur during the original child custody proceedings or as a post-divorce modification.

Seeking Full Custody with No Visitation

One parent often seeks sole legal and physical custody with no visitation if they believe the other parent will put their child in harm’s way. Denying all access to a child is an extreme action that courts only take in egregious cases. Judges generally provide some means for a parent to build a relationship with their child.

The court will deny a parent custody and potentially even visitation if the judge believes doing so is in the best interests of the child.

Custody and Visitation Hearing

When the two parents cannot agree on custody, the judge will hold a hearing. Custody and visitation are both usually discussed at the same hearing.

In addition to the judge and the parents, several other people may be in attendance:

  • Witnesses: Family members and others who know the child and/or the parents
  • Caseworker: Sometimes a social worker or psychologist is asked to write a report about the parents after making a home visit
  • Lawyer for the Child: Appointed by the judge, this person talks privately with the child to ascertain their wishes
  • Guardian Ad Litem: Appointed by the judge, this person investigates the case and the judge might ask for their custody recommendations

Depending on the circumstances and the child’s age, the judge may also speak privately with the child. The parents nor any lawyers are present for their confidential conversation.

Determining the Bests Interests of the Child

New York parents can be awarded physical or legal custody or both. Physical custody refers to where the child resides. Legal custody refers to decision-making authority for the child. A parent can be given either sole or joint custody. In cases where parents have sole physical and legal custody, the other parent can still be awarded visitation.

Judges consider numerous factors when determining custody that supports the best interests of the child:

  • Which parent has been the main caregiver of the child
  • The parenting skills of each parent, including strengths and weaknesses
  • Each parent’s ability to provide for the child's special needs, if any
  • The mental and physical health of each parent
  • Evidence of domestic violence in the family
  • Work schedules and child-care plans of each parent
  • The child's relationships with siblings and other family members
  • The wishes of the child, depending on their age
  • Each parent's ability to cooperate with the other parent
  • Each parent’s ability to encourage a relationship with the other parent, when it is safe to do so

The judge has a great deal of latitude in defining and evaluating what is in a child’s best interests.

The court will look unfavorably on a parent who has any of the following:

  • A history of child abuse
  • A history of domestic violence
  • A history of drug and/or alcohol abuse
  • An aggressive or violent mental health disorder

Even in cases where there is a history of abuse or violence, the offending parent may still be granted visitation. The judge can also require supervised visitation if they believe the child’s health or safety is at risk. Therapy, classes, or drug testing might also be mandated.

Legal Counsel for Complex Child Custody Issues

One of the most important jobs of being a parent is protecting their child. Shielding them from a dangerous parent is unfortunately sometimes necessary. To block an unfit parent from custody or visitation requires a skillful argument before a judge.

At Samuelson Hause PLLC, our more than 100 years of collective experience gives us deep insight into how to best build the case and succinctly present our argument before the judge. We also understand how emotional this can be for everyone involved. When you work with us, you can count on compassionate support throughout the process.

If you have a difficult custody matter, schedule a free consultation with us. Call us at (516) 584-4685 our contact us online.